Patricia Ashford v Mill Court Walton Limited

An issue estoppel arises only where the prior determination was necessary to the earlier decision and was made in litigation between the relevant parties. A tribunal cannot create an estoppel by deciding an unnecessary issue outside the matter it had to determine.

Whether a lease grants an easement to park depends on its proper construction. Evidence that parking was available or permitted, including the layout of a forecourt and compliance with planning conditions, does not itself establish an easement or a common intention to imply one. Where one lease expressly grants parking rights and comparable leases do not, that contrast may demonstrate that no parking easement was granted to the other lessees.

Patricia Ashford v Mill Court Walton Limited concerned collective enfranchisement of a block of four flats. The nominee purchaser claimed an easement to park in the front courtyard for the benefit of the enfranchising lessees.

The First-tier Tribunal had struck out the freeholder's challenge. It held that an earlier service-charge decision had already established that the relevant leases conferred parking rights. The freeholder appealed, contending that there was no issue estoppel and that the leases of Flats 2, 3 and 4 conferred no easement to park.

The Upper Tribunal set aside the strike-out decision and, by agreement, determined the substantive construction issue itself.

1. Appeal allowed. The First-tier Tribunal's strike-out decision was set aside. The respondent was not entitled to acquire an easement to park on the courtyard on collective enfranchisement.

2. No issue estoppel arose. Such an estoppel requires a prior determination between the relevant parties which was necessary to the earlier decision. The service-charge tribunal had decided that the parking charge was invalid whether or not parking was lawful. Its later view that the lessees had parking rights was therefore unnecessary to its decision and could not found an estoppel.

3. The service-charge tribunal also had no jurisdiction to make an unnecessary determination of lease construction after resolving the validity of the charge. The importance of the parking issue for future disputes did not justify its determination outside the issue before it.

4. The leases of Flats 2, 3 and 4 contained no express easement to park. The right to use private roads and paths did not confer a right to park, and the covenant against obstructive parking was consistent with a revocable licence rather than an easement.

5. Neither the planning condition, the courtyard's layout, nor evidence that parking had been permitted established a grant or common intention to imply an easement. The express grant of a parking easement in the lease of Flat 1, contrasted with its absence from the other leases, showed that the original lessor had not intended to grant those lessees an equivalent proprietary right.

6. Under section 1 of the Leasehold Reform, Housing and Urban Development Act 1993, the respondent could acquire permanent equivalent rights only if the leases already conferred a parking easement. They did not. The transfer was to proceed without such an easement.

• Upper Tribunal (Lands Chamber): Allowed the freeholder's appeal and set aside the First-tier Tribunal's strike-out of her parking case.

• First-tier Tribunal (Property Chamber): On 2 January 2020, struck out the freeholder's challenge to the nominee purchaser's claimed parking easement during collective-enfranchisement proceedings.

• First-tier Tribunal (Property Chamber): In a separate service-charge decision of 5 November 2019, held that parking charges were not payable and expressed the view that the lessees had parking rights. That view did not create an issue estoppel.